Legal and Political Issues
Legal and political issues play a significant role in the field of counseling, shaping the ethical boundaries and professional practice. Counselors need to navigate these issues to ensure the well-being and rights of their clients.
Here are some key points regarding legal and political considerations in counseling:
- Legal regulations: Counselors must adhere to the laws and regulations governing their practice, which may vary across jurisdictions. This includes licensing requirements, scope of practice, confidentiality laws, informed consent, and reporting obligations in cases of abuse, self-harm, or harm to others.
- Ethical guidelines: Professional counseling associations provide ethical codes that guide counselors’ practice and provide standards of conduct. These codes address issues such as confidentiality, boundaries, competence, dual relationships, cultural sensitivity, and the duty to report unethical behavior.
- Informed consent: Counselors are responsible for obtaining informed consent from clients, ensuring they understand the nature of counseling, potential risks and benefits, confidentiality, and the rights and responsibilities of both the counselor and client.
- Duty to warn and protect: In cases where there is a foreseeable risk of harm to a client or others, counselors may have a legal obligation to warn potential victims or take necessary steps to ensure safety, even if it involves breaching confidentiality.
- Confidentiality and privacy: Counselors have a legal and ethical duty to protect client confidentiality, except in specific circumstances where mandated reporting or legal obligations arise. They must take reasonable measures to secure client records and information.
- Cultural and diversity considerations: Counselors need to be aware of cultural, social, and political factors that can influence clients’ experiences and address potential biases and power dynamics that may impact the counseling relationship.
- Advocacy and social justice: Counselors can engage in advocacy efforts to promote positive change at the societal level, advocating for policies that protect clients’ rights, reduce stigma, and improve access to mental health services.
It is crucial for counselors to stay informed about legal and political developments that may impact their practice, engage in continuing education, consult with colleagues and legal professionals, and seek guidance from professional counseling organizations to ensure ethical and compliant practice.
1. Key Legal Issues in Counseling
Professional counselors must adhere to the ACA Code of Ethics, which sets out mandatory and aspirational ethics rules. They are also obligated to comply with applicable laws. While ethics guide professional conduct, laws have legal consequences. Counselors should prioritize both, as violating ethical standards can lead to sanctions, while violating laws can result in legal penalties. Although the law takes precedence, counselors can usually uphold ethical standards while following legal requirements. It is crucial for counselors to be familiar with the NBCC Code of Ethics and the ACA Code of Ethics, applying ethical concepts to practice situations. Key legal issues include FERPA, IDEA, Section 504, HIPAA, the Affordable Care Act, mental health parity, and considerations related to child abuse, counseling minors, and elder abuse.
1.1. Family Educational Rights and Privacy Act (FERPA)
Enacted in 1974, the Family Educational Rights and Privacy Act (FERPA) , also known as the Buckley Amendment, is a federal law that affects any counselor who works in an educational setting that receives funding from the U.S. Department of Education.
- FERPA was created to specify the rights of parents (if the child is a minor) and nonminor students to access and examine the educational record, petition to have incorrect information found in the record amended and ensure that certain information is not released to outside agencies without permission.
- An educational record refers to any document or information kept by the school relating to a student, such as attendance, achievement, behavior, activities, and assessment.
- Parents have the right to access their children’s educational information until the child is 18 years old or begins college, whichever comes first, at which point the rights shift to the student.
- Educational institutions are required to obtain written permission before releasing any information in a student’s educational record.
- An exception to the preceding rule is that schools have the ability to give out directory information about students without consent.
- Directory information includes the student’s name, address, telephone number, date of birth, place of birth, honors or awards, and dates of attendance at the school. However, schools must send an annual notice to students and parents informing them that they have the right to have their information, or their child’s information, barred from release.
- Educational institutions that fail to comply with FERPA may face punitive action, such as loss of federal funding.
- Professional counselors’ personal notes on students, considered an expansion of the counselor’s memory that are kept separate from the educational record in a secure location, are considered confidential. Students and parents do not have the right to access counselors’ personal notes. That said, general counseling case notes may be considered part of a student’s educational record, depending on the state.
1.2. Individuals with Disabilities Education Improvement Act (IDEA)
Like FERPA, this act applies to any school that receives federal funding and prohibits educational institutions from putting any student at a disadvantage based on a disability.
- Children are eligible to receive services under IDEA from birth until the age of 21 years.
- Counselors and educators serve as advocates for children with special education needs. School counselors are frequently part of the child study team, which evaluates a child’s educational, psychological, sociological, and medical needs to determine eligibility for services.
- To qualify for eligibility under IDEA, a student must have a documented disability in at least one of the following areas: intellectual disability, hearing impairment (including deafness), speech or language impairment, visual impairment (including blindness), serious emotional disturbance, orthopedic impairment, autism, traumatic brain injury, other health impairment, or specific learning disability. In addition, the student must need special education services as a result of a disability.
- All students with disabilities must be given free appropriate public education (FAPE) that addresses their individual needs and helps ready them for higher levels of education or employment.
- Every student who is eligible to receive special education services under IDEA must have an individualized education plan (IEP) on file. School systems convene meetings of multidisciplinary teams to create the IEP. A student’s IEP delineates what services the student will receive; when and how often; and goals for the student’s learning, which are updated and reviewed yearly.
- It is required that each student’s IEP ensure that the child receive the benefits of education in the least restrictive environment (LRE) , which was mandated to allow as many students as possible to remain in regular classrooms if their needs could be met there with only limited accommodation.
- Students covered under IDEA often are also covered under the more expansive Section 504 of the U.S. Rehabilitation Act of 1973.
1.3. U.S. Rehabilitation Act of 1973 (Section 504)
The U.S. Rehabilitation Act of 1973 (Section 504) , a civil rights act, protects individuals with disabilities from being discriminated against or denied equal access to services and opportunities because of their disability—IDEA being one of those protections.
- Eligible individuals must have a physical or psychological impairment that substantially limits at least one major life activity . These major life activities include walking, seeing, hearing, speaking, breathing, working, performing manual tasks, learning, and caring for oneself.
- To receive consideration, individuals must also be viewed as having the disability or have documentation of the disability, and it must interfere with their ability to meet their needs.
- In a school setting, when a student indicates a need, a multidisciplinary team meets to assess the student’s eligibility under Section 504. If the student is eligible, a 504 plan is constructed, which dictates the accommodations or other special considerations the student is entitled to receive. The team looks at multiple sources of information when determining students’ eligibility, including any test scores, grades, educational records, and medical documentation.
- Although there exists a whole host of possible accommodations a student may be given, a few examples of accommodations that school personnel make for eligible individuals include building ramps and installing elevators for students who are wheelchair-bound or injured, giving students more time to complete tests or other classroom tasks, and allowing students to use laptop computers to take notes.
1.4. Health Insurance Portability and Accountability Act (HIPAA)
HIPAA is a federal law, passed in 1996, to protect the privacy of individuals’ medical and mental health records.
- Patients, for their part, are required to sign a document affirming that they have received information on HIPAA.
- Health organizations must secure all PHI from unauthorized individuals and organizations.
- Patients have a right to obtain a copy of their medical record usually within 30 days.
- Patients have a right to request changes to adjust inaccurate health information in their record. Should there be a disagreement by the health organization about making such changes, the disagreement must be noted in the file.
- Health organizations are to honor reasonable requests to contact patients in different locations or by different methods.
- A counselor following HIPAA must allow clients to view their records and petition for changes to the counselor’s notes if they believe any information is false or inaccurate.
1.5. Patient Protection and Affordable Care Act of 2010
The Patient Protection and Affordable Care Act of 2010, commonly referred to as the Affordable Care Act (ACA), provides health care to Americans and includes consumer protections from private health insurance companies and limits long-term health care expenses.
- The ACA mandates coverage of preventive health services such as depression, substance use, and HIV screenings; smoking cessation screenings; obesity screening and counseling, domestic violence screening and counseling; and behavioral assessments.
- Health insurance companies, with the exception of grandfathered plans, cannot deny or charge more to individuals due to a preexisting health condition.
- For insurance plans that cover dependents, children can be covered under their parent or guardian′s plan until the age of 26 years.
- Lifetime and annual dollar limits on insurance benefits are not allowed for any insurance policy.
1.6. Mental Health Parity and Addiction Equity Act
The Mental Health Parity and Addiction Equity Act (MHPAEA) requires insurance companies offering coverage for mental health and substance use related services to make that coverage comparable to general medical coverage.
- The MHPAEA was developed to protect consumers directly from large group insurance plans, preventing annual and lifetime benefit limits for those receiving mental health and/or substance use services.
- The ACA augments the protections of the MHPAEA by identifying mental health and substance use services as one of the essential health benefits that must be covered by insurance plans. As such, it indirectly protects consumers who are enrolled in small health plans as well.
1.7. Child Abuse and Neglect
The federal Child Abuse Prevention and Treatment Act (CAPTA) defines child abuse and neglect as “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or, an act or failure to act which presents an imminent risk of serious harm”.
- Any counselor who suspects child abuse or neglect is required by law to report the suspicion to the local child protective services (CPS) agency within 72 hours from the time of first awareness of the potentially abusive or neglectful event. Counselors also must submit a written report to CPS after submitting the initial account.
- Anyone who reports suspected abuse or neglect will not be held liable, even if CPS fails to find any evidence supporting the claim during the investigation, unless a false report was filed with malicious intent.
- The ACA Code of Ethics upholds this legal duty, allowing counselors to ethically break confidentiality to protect a client from a potentially dangerous situation.
1.8. Counseling Minors
When providing counseling to minors, especially outside of a school setting, counselors must obtain informed consent from the parents or legal guardian and the assent of the minors before initiating any counseling sessions. In school systems, the requirement for informed consent is typically determined by local school or state policies.
- During the informed consent and assent process, minors and their parents must be provided with information about the counseling process, confidentiality limitations, and the right to withdraw from treatment.
- It is important to convey this information in a sensitive manner that is appropriate for the minor’s developmental stage and cultural background.
- Written informed consent should be obtained from parents, and counselors should explain the details to minors using language that they can understand based on their age.
- Some minors may be unable to provide assent due to disability or age, requiring special considerations and parental consent.
- While minors have an ethical expectation of confidentiality, parents retain the legal right to be informed about their child’s counseling sessions if they choose to exercise that right.
- Counselors must strike a balance between the needs of both parties and work to protect the ethical rights of minors whenever possible.
- Certain states allow minors of a specific age to consent to community health services, including mental health and substance abuse treatment, without parental consent. It is crucial to be familiar with the specific laws governing minor consent in the state of practice.
- In a school setting, professional school counselors may not always be required to obtain parental consent for counseling services, but they should be aware of the policies set by their state and local school boards.
1.9. Elder Abuse
Elder abuse encompasses various forms of maltreatment towards vulnerable or incapacitated older adults, including physical, sexual, or verbal abuse, financial exploitation, and caregiver neglect.
- All 50 states consider elder abuse a criminal offense, and many have mandatory reporting laws. In cases where older adults are neglecting themselves, some states allow law enforcement to intervene even if the individuals refuse services.
- The Older Americans Act, first passed in 1965 and reauthorized in 2016, aims to enhance social and nutrition services for older individuals. Title II (Elder Abuse Prevention and Services) and Title VII (Vulnerable Elder Rights Protection) of this legislation specifically address elder abuse.
- These sections emphasize the establishment of long-term care ombudsman programs, legal assistance, improved collaboration with law enforcement and court systems, and increased funding for detecting, assessing, and intervening in cases of elder abuse.
- The Administration on Aging (AoA), a division of the Older Americans Act, oversees significant grant programs and initiatives related to the legislation. Counselors should be familiar with the AoA as a valuable resource, particularly in addressing elder abuse concerns.
2. Ethical and Legal Issues
Understanding legal concepts and definitions is essential for counselors, both for exam preparation and their professional careers.
- Counselors have a legal responsibility called liability, which requires them to practice with due care. Failing to do so can make them vulnerable to legal action.
- Clients who feel harmed or wronged by a counselor’s behavior may file a tort, which is a legal response to harm against an individual or property.
- Two important types of torts for counselors are negligence and malpractice.
- Negligence occurs when counselors fail to exercise reasonable care in their professional duties, resulting in client injury.
- To prove negligence, the plaintiff must establish four components: a legal duty owed by the counselor to the client, breach of that duty, authentic injury, and a causal connection between the breach and the injury.
- Malpractice refers to counselors failing to meet the expected standard of care based on their credentials and experience. Plaintiffs in a malpractice case must prove the same four components as in a negligence case, and the counselor is typically required to be licensed or certified.
- Defamation is another type of tort that occurs when a counselor damages someone’s reputation through intentional spreading of falsehoods.
- Defamation can take the form of libel (written) or slander (spoken), and counselors can be held liable if their counseling notes, records, or communications contain false and malicious information that harms a client’s reputation.